The basic constitutional structure of the United States of America is that the legislative branch writes the laws, the executive branch enforces the laws and the judicial branch interprets the laws to decide whether they violate the constitution. Trump and Bill Barr have found a gaping hole in that construct. If the executive will not enforce the laws, who enforces the executive to enforce the laws?
It’s a startingly simple loophole: we really do not have a robust answer for an executive branch that places itself above the law. The judicial branch can rein in executive actions and declare them unconstitutional, but if the executive branch refuses to enforce laws (like, oh, I don’t know, lying under oath), then we don’t have much in the way of forcing them to do their constitutionally mandated job.
The closest we can get to real justice on this problem is Congress. They have a non-negotiable, constitutionally mandated oversight role over the executive branch—and an unprecedented situation like this in the executive branch should prompt a similarly unprecedented situation in the legislature’s oversight to rise to the challenge—but the Democrats in power ruled out impeachment before Robert Mueller even filed his report (where he asked Congress to consider impeachment on Trump’s potential obstruction of justice). Democratic leaders Nancy Pelosi and Steny Hoyer have been intentionally vague in the wake of the report, but it is clear that they do not want to do their constitutional job of checking the executive branch over impeachable offenses.
If Democrats opt for the traditional “don’t rock the boat” routine and rule out using their most potent weapon, that means we are stuck in a catch-22 that only benefits Trump. If Trump commits impeachable offenses and is not impeached for them, what’s to stop him from committing more impeachable offenses?
This dynamic extends to everyone in the Trump Administration. In today’s hearing, Attorney General Bill Barr almost certainly lied on multiple occasions, and here is one such example.
Here is the United States Attorney General hesitating to say that a presidential campaign should report an offer from a foreign adversary to the FBI.
And then there's this.
Lastly, here is the exchange of the day, with Kamala Harris getting Barr to reveal that there has been some kind of suggestion by the White House to open investigations into some folks, and that the Attorney General cleared the president of obstruction of justice without looking at all the underlying evidence.
The problem that we have is the nature of how power works in America. We romanticize Watergate because it was an outlier with a happy ending, while Iran-Contra (that Bill Barr helped cover up) recedes from our collective memory because it tells a much more brutal tale about how power really operates in this country.
I have to hedge by saying that Barr “almost certainly lied to Congress.” As the Mueller Report detailed with the lying liar who lies, Jeff Sessions, and his successful use of “I do not recall,” the bar to legally prove perjury by a man with that kind of power is exceptionally higher than the common sense bar in determining whether Sessions lied under oath. Attorney General Bill Barr’s testimony was an objective trainwreck of constant deception, but so was Attorney General Jeff Sessions’ when he appeared in front of Congress in the summer of 2017, and Robert Mueller cleared him of perjury. In a way, the vast powers of the executive which gives them miles of plausible deniability encourages authoritarianism.
When the highest lawman in the land continually disregards the law in favor of lies while under oath—doing so on behalf of the biggest liar in the history of our Oval Office—who can force them to enforce the law?
It’s the only real weapon we have against the authoritarianism of the executive. The courts can really only check constitutional breaches after a policy has been implemented. Congress has to utilize its vast oversight powers or else no one will be able to force the people who are supposed to enforce the laws…to enforce the laws.
Congress is an immensely powerful chamber, and Democrats must stop thinking about it as beneath the executive branch in the constitutional food chain. It is a co-equal branch, and the entire point of “checks and balances” is so the other branches can intervene should one of them fail. The era of the uber-powerful executive must end, and this is a real opportunity to fight back against the inherent corruption in American politics and demonstrate to the electorate that there is only one party committed to the outline of this republic.
The GOP has bet that authoritarianism can overrule democracy, and it’s difficult to argue against their logic given the dystopia surrounding us. Bill Barr no doubt made some damaging mistakes in today’s hearing, but the question is whether it will ultimately even matter. Given the mounting evidence of a serious battle looming between both the Senate and House with Barr (House Democrats are reportedly considering holding him in contempt), there is some hope that the politics of the past will remain there this time, and the answer to whether Barr’s mess will even matter may be “yes.”
Jacob Weindling is a staff writer for Paste politics. Follow him on Twitter at @Jakeweindling.